Ruling may change feds' records plans

Analysis

The U.S. Court of Appeals decision this month allowing federal agencies to continue deleting electronic records as long as they keep paper copies could slow government efforts to manage files digitally, but agencies are unlikely to abandon the programs they have started.

The decision in Public Citizen v. Carlin reversed a lower court ruling that the government's delete policy, known as General Records Schedule (GRS) 20, was invalid. That opinion galvanized federal efforts to craft new rules for managing records and prompted many agencies to consider for the first time how to keep track of their electronic documents.

Agency officials, vendors and the plaintiffs in the case said these initiatives probably will continue. The question is whether agencies have any incentive to proceed quickly without a legal mandate.

The decision "left the whole thing in such a way that there really is no pressure" to deploy electronic records management systems, said Paige Putnam Miller, director of the National Coordinating Committee for the Promotion of History, who was involved in the case. Miller said federal records laws might need to be changed to ensure that key government documents are preserved digitally.

But Frank McGovern, vice president of operations at Tower Software Corp., which sells electronic management software, said agency officials are not swayed so much by legal requirements as by practical arguments. "The worst thing to say to people is, 'You have to do it because [the National Archives and Records Administration] said so' or 'There's a law that you have to do it,' " said McGovern, who used to be in charge of recordkeeping for the Air Force.

The court case, McGovern said, "was healthy [in] that it brought attention to an area that needed people to take a closer look at,'' but in the end, agencies will start managing their records electronically because it solves a business problem.

Bette Behal, the records officer for the Agriculture Department, said she sees both points of view. "Records management does not tend to be a high priority on anybody's list" outside the profession, she said. But when an agency needs to find electronic records that may be on a backup tape that has "everything in the world but the kitchen sink" on it, they come to see why organizing the records from the beginning makes good sense, Behal said.

The court decision is not going to change Behal's strategy for setting up electronic recordkeeping in her department. Unless NARA "radically changes" the policies it issued in the past year, which Behal said she doubts will happen, "I'm planning to pursue encouraging [USDA] agencies to ensure that they have properly scheduled their electronic records and encourage exchange of information so they are aware there are choices and decisions to be made."

The department is reviewing whether and under what circumstances they should keep electronic or paper versions of their records. "There is not one decision that is going to fit everyone,'' Behal said.

NARA spokesman Gerald George said last week that his agency is reviewing the court decision and its impact on new policies that tell agencies how to catalog, or "schedule," their electronic records.

Michael Tankersley, the Public Citizen attorney who brought the suit, said parts of the ruling "will create problems for agencies" because the appeals court did not address any criteria for deciding which records need to be saved.

"Our argument wasn't that every agency has to institute electronic recordkeeping but that they have to make the distinction between what is important and what is not important," he said.

One problem with GRS 20, according to the suit, was that it let agencies treat all e-mail and word processing files the same way, even though some might contain information that could not be reproduced in a printout.

Meanwhile, Tankersley said he fears the decision will prompt NARA to extend the amount of time agencies have to assess their electronic records and that important documents will become inaccessible to future historians.

Public Citizen has another month to decide whether it will appeal the latest decision to the Supreme Court. The group also is considering whether to pursue some other action, such as pushing new legislation in Congress.